Director of Public Prosecutions v Trajkovski
[2013] VCC 907
•7 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-00316
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER TRAJKOVSKI |
---
JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May 2013 | |
DATE OF SENTENCE: | 7 June 2013 | |
CASE MAY BE CITED AS: | DPP v Trajkovski | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 907 | |
REASONS FOR SENTENCE
---
Subject: Theft, Perjury
Sentence: 3 Years, 9 Months, Minimum 2 Years
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Holding | |
| For the Accused | Mr A. Halphin |
HIS HONOUR:
1 Peter Trajkovski you have pleaded guilty to five charges of theft and one charge of perjury. The charges of theft occurred between April and June 2012 and the charge of perjury in June 2012.
2 In passing sentence I must have regard to the maximum penalty for the offences you have committed. The maximum penalty for theft is 10 years imprisonment. The maximum penalty for perjury is 15 years imprisonment.
3 The circumstances of your offending are outlined in a prosecution summary which was marked as Exhibit A on the plea. It was read to the court by the prosecutor Mr Holding and accepted by your counsel Mr Norton as being accurate and as forming an accurate basis upon which I can pass sentence on you. It is not necessary that I repeat what is there set out except in summary form. You were employed in a position of trust as a truck driver to transport to various work sites in Victoria large pieces of equipment such as fork lifts and scissor lifts. For that purpose you were given access to sites which you visited usually in the early hours of the morning before work commenced at those sites. In breach of the position of trust placed in you, you gained access to various work sites and stole large items of equipment which you on-sold to others (Charges 1 to 5). One of those persons was one Michael McMahon to whom you represented that the items of equipment you purported to sell to him were not stolen and were legitimate. McMahon purchased various items of equipment from you not knowing you had stolen them. He was subsequently charged and sentenced for his actions in dealing with the items and perjuring himself in a statement given to police after he discovered that you had in fact sold him stolen equipment. Charges 1 and 5 are rolled up charges for the purposes of the plea indictment.
4 Like McMahon, the charge of perjury (charge 6) results from a false statement given by you to police investigating the theft of the equipment you had stolen. Like McMahon, I think that once you became aware that the police were involved and your truck had been identified as having been seen leaving one of the work sites you panicked and attempted to lie about what you had done.
5 Theft is a prevalent crime. In sentencing for this kind of offence the sentence imposed will normally reflect proper application of the principle of general deterrence to deter others who might be inclined to offend in this way. The sentence must also reflect proper denunciation of your conduct.
6 Your offending in Charges 1 to 5 represents serious examples of the crime of theft. It involved the repeated theft of expensive building equipment over three months by planning and by breach of trust. The planning involved arranging of a purchaser before the theft and the delivery of the equipment to that purchaser the same day to avoid having to store the stolen equipment somewhere. I accept you only received around $33,000 up until the time of your arrest with further money to be received. But the equipment was more valuable than that sum and those who purchased from you lost their money. A claim for compensation was outlined by the prosecutor but not persisted with at the plea. There may be a claim later.
7 In passing sentence I must take into account the fact that you have pleaded guilty to the charges and you indicated that you would do so. In your case you indicated that you would plead guilty to the charges prior to any committal and you were committed for trial on the basis of the hand up brief. I treat you as having indicated your intention to plead guilty at the earliest possible opportunity. By your pleas of guilty you have saved the time and costs of a trial and the need for a number of persons to be called to give evidence. In my opinion you are entitled to a reduction in the sentence that you would have otherwise received had you fallen for sentence following conviction at trial and this is reflected in the overall sentence that I will shortly pass.
8 I also treat your pleas of guilty as a clear indication of your remorse for what you have done.
9 I turn to your background and your personal circumstances. You are married and aged 31 years. You have one child, a daughter Isobel aged 2 years. Your wife Jennifer gave impressive evidence for you and you were supported by her and other family and friends who attended court. I accept you had kept this offending to yourself right until the time that you were charged and so far as your family and friends are concerned this offending was entirely out of character. You have admitted a finding of guilt against you for theft at the Broadmeadows Magistrates’ Court in 2008 for which you were fined $1,000 without conviction. I do not place much store on that prior conduct.
10 I accepted into evidence as Exhibit 1 a letter from you in which you apologise to all affected by your offending. In the letter you express remorse for your conduct and as I said earlier I accept you are remorseful. I accept you are very concerned for the consequences not only for yourself but mainly for your family that will flow from you being jailed for your offending. I accept you acknowledge that by your conduct you let down your employer, Mr Sykes. At the very least you doubtless caused him a lot of embarrassment.
11 I admitted into evidence as Exhibit 2 a psychological report dated 24 May 2013 prepared by Patrick Newton for the purposes of this plea. That report sets out in some detail much of your family history and background and it is not necessary that I repeat it all here. In passing sentence I have had regard to the whole content of the report.
12 You had a good upbringing by hard working migrant parents. You left home at 18 and you are close to your family. You have had an uneventful education where English was your second language. You were apparently a poor student in primary school and your secondary education was at Essendon-Keilor College which you left part way through Year 11 and completed an apprenticeship as a pipe layer. You worked in this field for a brief period before moving into the transport industry where you have worked primarily for the last 10 years.
13 In recent times following dismissal from Sykes Transport you and your wife have borrowed heavily to purchase your own truck. This has put you and your wife in a precarious financial position lest the truck cannot earn sufficient income through a paid driver whilst you are in jail. You and your wife have your own home but I heard evidence from her of the financial difficulties you both have had acquiring this which remains subject to a large mortgage. The mortgage is another financial burden you leave behind whilst in prison. Your wife does not keep good health and this offending has placed significant unwanted stress upon her which she will have to bear whilst you are in prison. I admitted into evidence as Exhibit 3 a medical report from Dr Damien Green dated 17 May 2013 relating to your wife’s state of health. In passing sentence I have taken this into account. Mr Norton asked me to take the effect of imprisonment on your family into account in passing sentence and I have done so. He appropriately did not argue the circumstances were exceptional.
14 Your offending has occurred in a background of what Mr Newton in his report describes as “a relatively limited but intense history of substance abuse”. Your primary drug of abuse is the amphetamine ICE and you told Mr Newton you also use “significant quantities of cannabis”. You started using ICE at the beginning of 2012 and quickly progressed to using substantial quantities. You do not inject intravenously. Eventually the only way you could get to sleep was by taking the drug Xanax or using cannabis. You became hooked into a drug cycle from which you could not escape leading to problems in your marriage and with you being unable to perform your work properly.
15 To add to your problems you developed a gambling addiction. This was first accessed online but led to you attending poker machine venues and the Casino. You told Mr Newton you had lost tens of thousands of dollars to gambling. You were prone to gambling when using amphetamine.
16 Your drug addiction and your gambling explains but does not excuse your offending. You presently suffer symptoms of anxiety and depression brought on mainly by the fact of these criminal proceedings and anticipation that surrounds the sentencing of you. Your drug use, whilst not long term, was intense leading up to and at the time of offending. You are said to have reduced your drug use since arrest but you told Mr Newton you continue to “dabble” in the use of both cannabis and stimulants. That in my view is a real concern. Whilst I accept you are remorseful for your conduct I cannot say your prospects for rehabilitation are good whilst you continue to use drugs. Were you truly intent on putting this matter behind you and having regard to the financial difficulties faced by you and your wife in the time between your arrest and now, you have done little if anything to rid yourself of drugs and turn your life around. Whether you can be rehabilitated I think depends upon what treatment you might receive in prison and after your release.
17 Mr Newton opined you suffer from an Adjustment Disorder with Mixed Anxiety and Depressed Mood which he thought was a relatively strong response to your current situation rather than the outworking of a primary anxiety or mood disorder. He also opined your thought processes are normal, that you are not psychotic and your capacities for moral reasoning and reality testing are not impaired. He thought your intelligence level at the low end of average range. I accept this evidence.
18 I also admitted into evidence as Exhibit 4 references from Daniel Marazita and Bobi Mircevski both of which speak highly of you as a person and the fact they regard this offending as being out of character for you. In passing sentence I have taken these references into account.
19 Mr Holding on instructions submitted that an appropriate sentencing range in all the circumstances of your offending and having regard to all of the matters put in mitigation of your punishment was for a head sentence in the range of 3 to 4 years with a non parole period in the range of 18 months to two and a half years.
20 The thrust of Mr Norton’s plea on your behalf having regard to all of the mitigating factors listed above was for the imposition of a relatively short period of imprisonment before you are to be released on parole. Mr Norton properly conceded that your offending warranted the imposition of an immediate term of imprisonment but he submitted that having regard to your remorse and pleas of guilty and your family circumstances and the need for you to receive proper treatment for your drug addiction and gambling habit that it would be best for all concerned and give you the best chance of rehabilitation were you to be released from prison as soon as possible. He submitted a non parole period should be fixed of no more than 12 months. Whilst I generally agree that it is in everyone’s best interest that you be rehabilitated and your best chance of treatment is outside rather than inside prison, you have not taken steps yourself to rid yourself of drugs and you have continued to imbibe them. In passing sentence I have reduced the non parole period that I would have otherwise imposed mainly because this is your first time in prison and I think you would be better back with your family. I am of the view that a non parole period of 12 months is far too soon in all of the circumstances and outside what is an appropriate range.
21 On Charge 1 theft you are convicted and sentenced to a term of imprisonment of two (2) years.
22 On Charge 2 theft you are convicted and sentenced to a term of imprisonment of nine (9) months.
23 On Charge 3 theft you are convicted and sentenced to a term of imprisonment of nine (9) months.
24 On Charge 4 theft you are convicted and sentenced to a term of imprisonment of twelve (12) months.
25 On Charge 5 theft you are convicted and sentenced to a term of imprisonment of eighteen (18) months..
26 On Charge 6 perjury you are convicted and sentenced to a term of imprisonment of eighteen (18) months.
27 I direct that nine (9) months of the sentence imposed on Charge 5, six (6) months of the sentence imposed on Charge 4 and, three (3) months of the sentences imposed on Charges 2 and 3 cumulate upon the sentence imposed on Charge 1 and with each other making a total effective sentence of three (3) years and nine (9) months' imprisonment. I direct that you serve a minimum term of two years imprisonment before being eligible for release on parole.
28 For the purposes of section 6AAA of the Sentencing Act 1991 I state I have imposed a sentence being a term of imprisonment in respect of each charge on the indictment and I have reduced the sentence I would have imposed but for your pleas of guilty. Had it not been for your pleas of guilty to the charges I would have imposed an effective term of imprisonment of five years and I would have directed that you serve at least three years and four months of that sentence before being eligible for release on parole.
29 I declare that you have served 8 days presentence detention and that 8 days be reckoned as having already been served under the sentences imposed this day and be entered in the records of the court and deducted administratively.
30 Are there any matters arising out of that?
31 MR HOLDING: Sorry, Your Honour, I just missed the arithmetic on the cumulation. You said three months on Charge 3?
32 HIS HONOUR: Let us just go through the charges first; 2 years on Charge 1; 9 months on 2; 9 months on 3, 12 months on 4, 18 months on 5 and 18 months on 6.
33 MR HOLDING: Yes.
34 HIS HONOUR: Nine months of the sentence imposed on Charge 5, six months of the sentence imposed on Charge 4, 3 months of the sentences imposed on Charges 2 and 3 cumulate upon the sentence imposed on Charge 1 with each other, making a total effective sentence of three years and nine months.
35 MR HOLDING: That's where I'm just having a bit of problem because I thought 9 and 6 and 3 add up to 18 months.
36 HIS HONOUR: There is two lots of 3.
37 MR HOLDING: Two lots of 3, sorry, yes.
38 HIS HONOUR: Charges 2 and 3.
39 MR HOLDING: Yes I see. I thought it was aggregate on the 2 and 3, I apologise, I understand that.
40 HIS HONOUR: Thank you, would you take Mr Trajkovski into custody, please?
- - -
0
0
0